Legal Aid Soc. of Hawaii v. Legal Services Corp., Civil No. 97-00032 ACK.

Citation961 F.Supp. 1402
Decision Date14 February 1997
Docket NumberCivil No. 97-00032 ACK.
CourtSupreme Court of Hawai'i
961 F.Supp. 1402
LEGAL AID SOCIETY OF HAWAII, et al., Plaintiffs,
Civil No. 97-00032 ACK.
United States District Court, D. Hawai`i.
February 14, 1997.

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Paul Alston, Bradford L. Tannen, Alston Hunt Floyd & Ing, Honolulu, HI, Stephen V. Bomse, Charles N. Freiberg, Adam M. Cole, Rakesh K. Anand, Robert A. Rosenfeld, Heller Ehrman White & McAuliffe, San Francisco, CA, Stanley E. Levin, Davis Levin Livingston Grande, Honolulu, HI, Hope L. Hudson, Heller Ehrman White & McAuliffe, Palo Alto, CA, Steven R. Shapiro, Robin L. Dahlberg, American Civ. Liberties Union, New York City, Margaret C. Crosby, American Civ. Liberties Union, San Francisco, CA, for Legal Aid Soc. of Hawaii, Legal Services of Northern California, Inc., San Fernando Valley Neighborhood Legal Services, Legal Aid Soc. of Orange County, Alaska Legal Services Corp., California State Client Council, The Hawaii Justice Foundation, The Impact Fund, Lloyd Van De Car, Gary F. Smith.

Daniel A. Bent, Carlsmith Ball Wichman Murray Case Mukai & Ichiki, Honolulu, HI, Thomas S. Williamson, Jr., Georgia Kazakis, Ernest A. Young, Erika F. King, Covington & Burling, Washington, DC, for Legal Services Corp.


KAY, Chief Judge.

This case concerns Congress' ability to place restrictions on non-federal public funds and those private funds not previously restricted (hereinafter "Non-LSC funds")

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where such restrictions completely foreclose the exercise of certain constitutional rights.


In 1974, Congress created the Legal Services Corporation, ("LSC") a private, non-profit corporation, to distribute funds from Congress to various independent legal programs. 42 U.S.C. § 2996 et seq. The LSC is governed by an 11 member board appointed by the president and confirmed by the Senate. 42 U.S.C. § 2996a The congressionally established aims of the LSC include the "need to provide equal access to the system of justice in our Nation for individuals who seek redress of grievances." See 42 U.S.C. § 2996(1).

Since its zenith in the late 1970s, the LSC has increasingly come under attack. In fact, the LSC has operated without authorization since 1980 surviving only through annual appropriation bills. See e.g. Congressional Quarterly Weekly Report, 1/22/94.

More recently, many lawmakers sought to abolish the LSC. The elimination of the LSC was averted, however, when in exchange for numerous conditions placed on the funds, Congress continued funding the LSC. This suit arises out of the conditions imposed by Congress in 1996 and 1997 by the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321, § 504(d)(1) ("1996 Budget") and the Omnibus Consolidated Appropriations Act of Fiscal Year 1997, Pub.L. No. 104-208, 110 Stat. 3009, § 502(a) ("1997 Budget").

In the 1996 and 1997 Budgets, Congress placed the following prohibitions on agencies that accepted LSC funds: (1) advocating or opposing any reapportionment of a legislative, judicial or elective district on any level, 1996 Budget § 504(a)(1); (2) influencing the "issuance, amendment, or revocation of any executive order", 1996 Budget § 504(a)(2); (3) "attempt[ing] to influence any part of any adjudicatory proceeding of any Federal, State, or local agency," 1996 Budget § 504(a)(3); (4) attempting "to influence the passage or defeat of any legislation, constitutional amendment, referendum, initiative ... of the Congress or a State or a local legislative body" 1996 Budget Act (a)(4); (5) initiating or participating in a class action lawsuit, 1996 Budget § 504(a)(7); (6) litigating or lobbying in an effort to reform the federal or state welfare laws or systems, 1996 Budget § 504(a)(16); (7) representing certain aliens except in cases of domestic violence, 1996 Budget § 504(a)(11); (8) "conduct[ing] a training program for the purpose of advocating a particular public policy or encouraging a political activity", 1996 Budget § 504(a)(12); (9) claiming or collecting attorney's fees; 1996 Budget Act § 504(a)(13); (10) "participating in any litigation on behalf of a person incarcerated in a Federal, State, or local prison", 1996 Budget Act § 504(a)(15); (11) representing people allegedly engaged in certain illegal drug activity in public housing eviction proceedings, 1996 Budget Act § 504(a)(16); and (12) "participat[ing] in any litigation with respect to abortion", 1996 Budget Act § 504(a)(14). These prohibitions applied to LSC as well as to non-LSC private funds.1 The Act also required a written statement of facts be prepared by the legal aid organizations prior to initiating litigation or pre-litigation negotiations. 1996 Budget Act § 504(a)(8).

On January 9, 1997, five legal service programs (the Legal Aid Society of Hawaii ("LASH"), Legal Services of Northern California, Inc. ("LSNC"), San Fernando Valley Neighborhood Legal Services ("SFNLVS"), Legal Aid Society of Orange County, and the

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Alaska Legal Services Corporation), a group representing legal services clients (California State Client Council), two organizations that have funded work by legal service programs (the Hawaii Justice Foundation and The Impact Fund), and two legal service program lawyers (Lloyd Van De Car and Gary F. Smith) (hereinafter collectively referred to as "Plaintiffs") brought suit challenging these restrictions. The Plaintiffs ask this Court to enjoin the LSC from enforcing the restrictions.

On January 14, 1997, the Court held a status conference wherein the motion for the preliminary injunction was set for February 14, 1997.2 On January 24, 1997, the Court memorialized the briefing schedule for the hearing in an order. Pursuant to the order, the LSC filed its opposition to the preliminary injunction on January 30, 1997. The Plaintiffs filed their response on February 4, 1997. The Court held a hearing on February 14, 1997.


1. Preliminary Injunction

The standards for granting a TRO and a preliminary injunction are similar. Cf. Los Angeles Unified School Dist. v. United States Dist. Court For Central Dist. of California, 650 F.2d 1004, 1008 (9th Cir.1981) (standard for preliminary injunction is at least as strict as that for TRO) (Ferguson, J., dissenting); Half Moon Bay Fishermans' Marketing Ass'n v. Carlucci, 857 F.2d 505, 507 (9th Cir.1988) (district court denied motion for TRO which was treated by stipulation as also a motion for preliminary injunction).

In Miller v. California Pacific Medical Ctr., 19 F.3d 449 (9th Cir.1994), the Ninth Circuit set forth the standard for granting a preliminary injunction as follows:

Traditionally we consider (1) the likelihood of the moving party's success on the merits; (2) the possibility of irreparable injury to the moving party if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by granting the preliminary relief.

Id. at 456 (citing United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.1987)).

The moving party must show `either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) the existence of serious questions going to the merits, the balance of hardships tipping sharply in its favor, and at least a fair chance of success on the merits.'

Miller, 19 F.3d at 456 (quoting Senate of California v. Mosbacher, 968 F.2d 974, 977 (9th Cir.1992)).

`These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.'

Miller, 19 F.3d at 456 (quoting Odessa Union, 833 F.2d at 174).

The grant or denial of a TRO or preliminary injunction is reviewed for abuse of discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1132-33 (9th Cir. 1979).


I. Likelihood of Success

In obtaining a preliminary injunction, the Plaintiffs' likelihood of success determines what other elements the Plaintiffs need to prove. If the Plaintiffs can show "probable success on the merits" then Plaintiffs need only "show ... the possibility of irreparable harm." Miller v. California Pacific Medical Center, 19 F.3d 449, 456 (9th Cir.1994). If the Plaintiffs, however, can only show a "a `fair' chance of success," then they must also "show that there are serious questions going to the merits of the case and that the balance of the hardships tips decidedly

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in its favor." Id. at 460 n. 5. If Plaintiffs cannot establish at least a "fair chance" of success, no preliminary injunction should be granted.3

A. Constitutional rights are at stake

To prevail, Plaintiffs must prove that the restrictions infringe their constitutional rights.4 A sine qua non of this burden is proving that the restrictions at least implicate Plaintiffs' constitutional rights. In their effort to meet this burden, Plaintiffs recite a laundry list of constitutional rights which supposedly apply. In this case, the most compelling, and applicable, of these rights are the right to lobby and the right to associate.

The First Amendment clearly protects the right to lobby legislators and administrators. See e.g. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611-12, 30 L.Ed.2d 642 (1972). The right to lobby or petition, moreover, "extends to all departments of the Government." Id. at 510, 92 S.Ct. at 612. Yet, Plaintiffs' right to lobby various agencies and in support of certain causes is prohibited by the LSC. For example, Plaintiffs are prohibited from: (1) advocating or opposing any reapportionment of a legislative, judicial or elective district on any level, 1996 Budget § 504(a)(1); (2) influencing the "issuance,...

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